Comments on: Thanks Elon Musk For Being A Real Leader On Patent Reformhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html
Sun, 02 Aug 2015 22:34:00 +0000hourly1By: Brian Assamhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160910
Tue, 17 Jun 2014 02:59:00 +0000http://local.feld.com/?p=10344#comment-160910This is true. It’s a fun system we live in isn’t it.
]]>By: Dale Emmonshttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160909
Tue, 17 Jun 2014 01:57:00 +0000http://local.feld.com/?p=10344#comment-160909> If the little guy with “the big idea” isn’t protected then he has no chance against the the larger corporations, who can put 1000 times the resources into an inferior product that might make the little guy’s product obsolete, even if it is a better product.

Quite honestly this will be the case regardless of whether you hold a patent to the invention. There’s a thousand ways a determined large company can crush you, including, ironically, via the patent system.

I wasn’t stating that all ideas should be patentable. I was stating that all patents arise through ideas, and I totally agree that ideas, that are eventually patentable, should be inventive and provide, what you call, “enablement.”

I think the point is clear. Patent reform should focus on the legitimacy and use of software patents. However, software patents, in general, should not be considered invalid. In a proprietary based economy the end results of invalidating all software patents would be detrimental to innovation and novelty. It would be like throwing out the baby with the bathwater. No bueno.

]]>By: Clif Hhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160893
Sun, 15 Jun 2014 17:56:00 +0000http://local.feld.com/?p=10344#comment-160893This is fascinating and seems to resonate with the “execution is more important than IP” mantra we see across Startup Weekends, hackathons, etc. As well as a Millennial generation that puts collaboration, sharing, etc at the heart of its core values.

And if the average wait time for patent approval is 3 years (a lifetime in the tech world) how meaningful is that approval at the end of the day?

Has involvement of StackExchange and others in the equation helped ameliorate any of the trolling for legitimate patent proposers?

]]>By: PatentGeekhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160888
Sun, 15 Jun 2014 03:46:00 +0000http://local.feld.com/?p=10344#comment-160888The Supreme Court did more than just make “induced infringement” a harder argument to make. It also told the lower courts that they need to be invalidating patents that are clearly “indefinite.”

The Federal Circuit–the Courts that handle patent cases–should simply be invalidating patents that don’t make sense, or are unclear.There are plenty of software patents that don’t seem to make any sense, but the courts like to “explain” patents through a process called “construction.” If some statements in the patent are “indefinite,” the Court says, “don’t worry, here’s what it all means.”

The courts never had the right to do this, but nevertheless they do … but now the Supreme Court is upping the standard, saying essentially that if the patent is unclear–is indefinite–tough luck, it’s not a valid patent. You don’t get to revive a confusing, badly written patent by having a bunch of attorneys and a judge decide what it means. This will make it much easier for Defendants to invalidate patents. Many software patents are intentionally vague, in fact, so they can be broad enough to create a wide range of potential litigation targets.

]]>By: PatentGeekhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160887
Sun, 15 Jun 2014 03:33:00 +0000http://local.feld.com/?p=10344#comment-160887As Brad points out, ideas are not patentable; only truly inventive ideas are patentable. That’s fair, it means you can’t, at least in theory, patent science fiction … you can’t patent, for example, the concept of fusion power, but you could patent, if you can figure it out, an “enablement” of the concept … an actual process through which fusion power could be generated.

The problem with software patents is that they are essentially patenting ideas … you take the idea and then take 10,000 words to say “and we’ll do it with a computer,” and the Patent Office then accepts that as an invention. However, most software patents don’t contain “enablement” … that is, they really don’t say how to carry out the process; rather, they just paste together a bunch of mumbo jumbo about servers and networks and this and that. But more importantly, software patents generally don’t *require* enablement. That is, if you simply tell a “person skilled in the art” the idea behind the patent, he can build the system without needing you to explain how to do it, a sure sign that it’s merely an idea, not truly inventive.

There’s a patent on the idea of putting pins on a map in a Web page to show store locations, for example, a patent that should have been invalidated by the Courts because it totally lacks “enablement,” but also a patent that doesn’t require enablement; any decent programmer could do it without needing a patent to explain to him how to do it.

As the Supreme Court said, back in 1883:

“It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accountings for profits made in good faith.”

And yet that’s what the Patent Office is doing, issuing patents on “shadows of a shade of ideas.”

BTW, the Supreme Court has also stated quite clearly that the problem is the Patent Office acting unconstitutionally. Back in 1950 it stated…

“The attempts through the years to get a broader, looser conception of patents than the Constitution contemplates have been persistent. The Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents – gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to extend monopoly to the simplest of devices.”

Until the big tech companies band together to sue the Patent Office for issuing these unconstitutional patents, the problems won’t end.

]]>By: Tom Hochstatterhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160872
Sat, 14 Jun 2014 19:32:00 +0000http://local.feld.com/?p=10344#comment-160872Brad, thanks for amplifying Elon’s leading position on innovation and patents – there is still much to do on many fronts. My firm, idealAsset, is attempting to level out the patent and IP marketplace by offering an alternative to all inventors/patent holders to efficiently find and transact their IP. We provide a hyper fast and efficient method to match buyers/sellers to one another.

Patent Trolls and courts are the “marketplace of only resort” for far too many patent holders. Once we make things more liquid and transparent will mature markets and (market) participants emerge to provide the grease and not the glue.

As a 25 year vet of Enterprise S/W and start-ups (and patents) – it escapes me why their isn’t more innovation in the innovation industry.
– Tom Hochstatter

]]>By: bfeldhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160868
Sat, 14 Jun 2014 17:34:00 +0000http://local.feld.com/?p=10344#comment-160868I’d obviously have to know more about what you’ve done to have an opinion. So I guess I’ll have to wait until it’s on the market!
]]>By: bfeldhttp://www.feld.com/archives/2014/06/thanks-elon-musk-real-leader-patent-reform.html#comment-160867
Sat, 14 Jun 2014 17:33:00 +0000http://local.feld.com/?p=10344#comment-160867It would likely address some of it.
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